Illustration by Bloomberg View
Illustration by Bloomberg View

The concept of “states’ rights” has a disgraceful history as the intellectual backbone of the Southern cause during the Civil War. One hundred years later, it was still being asserted as a legitimate, supposedly nonracist, reason for opposition to the civil-rights movement.

But there’s another historical thread, too: a progressive one that claims the states can be “laboratories of democracy.” The phrase comes from a 1932 dissent by Justice Louis Brandeis: “It is one of the happy incidents of the federal system that a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.”

In the past year or so, states’ rights have become a hot topic again in several contexts. Twenty-six state attorneys general are challenging a key part of President Barack Obama’s health-care reform on the grounds that it exceeds the federal government’s constitutional authority. Unrelated to this, the famous Republican alternative federal budget, written by House Budget Committee Chairman Paul Ryan, calls for major savings by replacing Medicaid -- the program that provides health care for the poorest citizens -- with block grants to the states.

10th Amendment Aficionado

And then there is Rick Perry, governor of Texas and flavor of the moment among Republican presidential candidates. Perry is an aficionado of the 10th Amendment, which provides that “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” All prominent Republicans claim to be 10th Amendment enthusiasts, but only Perry has actually written a book expressing his ardor. (The book is “Fed Up! Our Fight to Save America from Washington” -- with a foreword by another Republican presidential candidate, former House Speaker Newt Gingrich.)

The first thing to say about states’ rights is that states have no rights. (Nor, for that matter, does the federal government.) People have rights. Our forefathers, after trying a loose confederacy, decided that a tightly connected group of states surrounding a central government with strong, but delimited, powers was the best arrangement, and most people think it has worked out pretty well.

The second thing to say is that if you don’t care for this arrangement -- or how the courts have interpreted the 10th Amendment or the Commerce Clause or other provisions relating to state-federal relations -- that’s too bad. You can try for a constitutional amendment, or hope for a generation of judges and justices who see things the way you do. But meanwhile, the Constitution must be honored.

The third thing to say is that all constitutional provisions are in there for a reason, and cannot be wished away. The 10th Amendment places limits on federal power whether we like it or not. The question is, of course, what are those limits?

In general, the courts have taken a pretty broad view of permissible federal power, especially over commerce. This has enabled us to build a continent-wide economy, with no borders, no tariffs or quotas, hundreds of millions of customers, and uniform standards or customs for everything from the width of railroad tracks to the choice of language we do business in (English, for the most part).

We wonder if the governor of Texas appreciates what a blessing this is, and how central to our prosperity and ultimately to our power as a nation to protect its freedoms (and other people’s). He has only to look at Europe, which has been struggling for six decades to establish a continent-wide economy and still hasn’t quite gotten it right.

States as Laboratories

By and large, the states have ignored Brandeis’s invitation to become “laboratories of democracy,” trying out experimental policy ideas on their own populations rather than putting out-of-staters at risk. To be sure, every state has a few hobbyhorses. There is, for example, the health-care reform enacted in Massachusetts under Governor Mitt Romney -- seemingly quite similar to the new federal plan, but actually (says Romney) specially designed for the citizens of his state. But state governments compete to attract business, so the likelihood that any one of them will go off on an expensive tangent is slight. Instead, the states work hard to develop uniform regulations on every subject under the sun.

Gay marriage is a counterexample. It seems to be spreading one state at a time, just as Brandeis, a far-left Democrat by today’s standards, might wish. It seemed from his book on this topic that Perry might actually be a principled federalist and a principled libertarian. He writes, full of sweet reason and tolerance: “We can all still be proud Americans while acknowledging that we simply do not agree on many fundamental issues. If you don’t support the death penalty and citizens packing a pistol, don’t come to Texas. If you don’t like medicinal marijuana and gay marriage, don’t move to California.”

Change of Heart

But since he wrote that, in 2010, he apparently has had a change of heart. Today, he supports the Defense of Marriage Act, a federal law imposing a gay-marriage ban on the states.

The lesson here is that there are no federalists in political foxholes. When an issue comes along that you -- or people you are trying to entice to vote for you - - really feel strongly about, you aren’t going to let considerations of states’ rights get in your way.

On the other hand, “Turn it over to the states” is a favorite dodge for national politicians of all stripes when there is an issue they want to duck. As if there were the slightest evidence that state governments are more efficient or less corrupt than the feds.

In fact, the evidence is quite the other way: If you had to choose between the federal government or the typical state government to handle your affairs, if you had any sense, you would choose the feds.

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